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Kenya’s Constitution Making History: 1890-2010

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Kenya’s search for a new constitution can be traced back, as long back, as 1890 when the British started settling in Kenya after the IBEA Company had navigate the country.

 1920, the British declared Kenya a protectorate and a colony: a
colony in the interior parts of Kenya and a protectorate at the 10-miles coastal
strip that was under the reign of the sultan of Zanzibar. When one looks at that
history, one is able to discern the issues that have made Kenyans clamour for
change, including the issue of reduced power at the centre; some communities
seeking to get out of their marginalized status; and some others wishing to
secede and so on. Below is an analysis of the five phases of Kenya’s search for
a new order that is built on justice, equality and common good.

PHASE 1: 1890-1960
In this phase, marked by subordination and subjugation of the local people by
colonizers, there was an undying need for freedom. Colonial rule was by decree,
ordinances and also was marked by dictatorship of the colonial governor, who
represented the queen of Great Britain. Africans were clamouring for freedom and
land, which had been taken away since Kenya was declared a settler colony.

All fertile land was taken away for large scale farming and livestock keeping.
Communities that previously resided on such lands, like the Maa speaking
communities, were deprived, chased away or simply held in ‘reserve’ lands, which
were akin to ‘concentration camps’ in Nazi Germany. Africans were denied the
rights to organize and even form political parties.

By the time 1944 approached, there was some level of consciousness among
Africans and some of them were elected to the Legislative Council (LEGCO). More
representation in both the executive council and the LEGCO was fought for by the
emerging African leaders. Further, while there were some elements of
constitutional law towards the end of the phase, especially through the
Lyttleton and Lenox Boyd Constitutions (of 1954 and 1958 respectively), it was
emerging that Africans wanted more: total representation in all organs of
government and also freedom to rule their own country. This led to the second
phase discussed below.

PHASE 2: 1960-1962
This phase was marked by emerging constitutional moments. In this phase, three
conferences were organized in London to draft Kenya’s new constitution. In these
discussions, some of the key problems in phase one resurfaced. For instance, the
Mwambao United Front, coming from the then coastal protectorate, was demanding
federalism and to some extent a high level of autonomy for their region. The Maa
speaking communities were demanding back their fertile grazing land, which has
been deprived off them after signing the ‘Lenana Agreements’ of 1904 and 1908.

The Somali and communities in the northern region, which has not seen any level
of infrastructural development during colonialism demanded full independence as
a country on its own. Thus, the way in which the British administered Kenya came
back to haunt the three conferences in Lancaster.

Moreover, there were new political parties pitching for two systems of
government. KADU pitched for a federal state, and was backed by minority groups
including the then settlers. KANU on the other hand pushed for a centralized
system akin to how colonialists administered Kenya, and also favoured a
parliamentary system similar to the one in United Kingdom.

PHASE 3: 1963-1991
Kenya became independent partially by having self-government under a prime
minister, then later full independence but still with the governor as head of
state representing the queen. But before one year was over, the first amendment
was passed to abolish this latter post, and equip the same powers to the prime
minister. The rain, as it goes, started beating Kenya on this material day.

Numerous amendments that wrecked havoc to institutionalism and constitutionalism
were hurriedly done to the extent that by 1969, ten amendments had been made.
The independence constitution was totally modified to suit the power hungry
elite, who equipped so much power in the presidency – a president who was never
elected by anyone in the first place. That was the first type of amendments:
amendments to destroy the constitutional infrastructure cited in phase two

The second type of amendments consisted of changing the constitution but later
MPs realizing the folly and going back to the state as it was then. Such
amendments included the change of parliamentary language from English to
Kiswahili and later on reverting to both; or the amendment that removed security
of tenure for constitutional office holders only to return to status quo at a
later date; or even the amendment to create a dejure one party state and later
on return Kenya into multipartyism. The later concluded this phase as the 27th
amendment of 1991.

PHASE 4: 1992-2002
This phase was marked by numerous demonstrations and street protests for change.
The former president Moi at the helm of the party and the state was solid and
anti-reform. But the push surmounted all decoys that either him or KANU put as
obstacles. Kenya opened up, people claimed more space, and civil society pushed
from the middle for an all inclusive democratic process to rewrite the
constitution. A group of reformers emerged from civil society and the opposition
political parties, and they pushed for reforms on behalf of the common person.
Indeed, if elections were any indicator in 1992 and 1997, Moi had already lost
his grip over the country.

Within this phase, three critical steps were taken. First was to forge a common
ground for reforms, within the Ufungamano Initiative. Second was to organized
and push for legislative framework to govern the process. And third, was the
push for further constitutional amendments under the IPPG, which somehow stole
the chance to rewrite the country’s constitution in 1997.

PHASE 5: 2003-2010
In Kenya’s history, this is the most promising phase in the search of a new
order. But alas, Kenyans squandered the opportunity. Kenyans were however led by
a querulous government in 2003 whose formation combined both anti- and pro-
reformists; to a divisive referendum in 2005; and, to a post-election debauchery
in 2008. This is where Kenya’s dream search for that new order remained still
that: a dream.

After the defeat of the constitutional draft at the referendum, there were
efforts aimed at jumpstarting the review. Such efforts included a taskforce set
up to investigate why Kenyans rejected that draft; parliamentary attempts by
front- and back-bench MPs; and also, political parties’ initiatives to re-start
the process. All these were in vain.

Summarily, new laws were drafted but were either hazy or ill-intentioned to
restart the process. Second, politicians switched sides within this phase, where
pro-reformers now enjoying presidential and state power, wanted status quo,
while the group outside confines of such power wanted power devolved. And third,
legal bottlenecks either as opinions from lawyers or judicial rulings from
judges stifled an already polarized process.

Kenya is still in this phase. A committee of experts was formed and already, yet
again, Kenyans have been quarreling about the process and content of the new
order. Politicians are campaigning; most of civil society is confused in the
process, but some like Katiba Sasa know what they want; Kenyans are claiming
more and more ‘contentious issues’ by the day. But the clock is ticking. August
4th 2010 is nearing.

Will the committee of experts, parliamentary committee, MPs
in total, reference group of key stakeholders, and also civil society in general
agree to make the constitution that befits justice, equality and common good?
Will the envisaged referendum be about the draft constitution or about
personalities or politics of succession or ethnic lineages? Will this be a lost
phase again? Many are optimistic that, and should vote for, the Proposed
Constitution of Kenya that will become the new ‘supreme law’: but time will
surely tell.

Subscribe to comments feed Comments (2 posted):

Essays on 27/01/2011 18:24:09
Thanks for sharing! Kenya's Constitution is really interesting and a bit not so modern. But still there are lots of points, that could be grate addition for many countries' laws nowadays!
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Logo Design on 10/02/2011 10:34:05
When one looks at that
history, one is able to discern the issues that have made Kenyans clamor for
change,I appreciate the work of all people who share information with others.
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